The big companies have armed themselves for the patent wars. Now ordinary businesses have their own defense with the Open Invention Network

InfoWorld|Apr 12, 2013

The patent wars are in full swing. Software developers everywhere are keeping their heads low, hoping they won't be called out of the trenches as software giants like Nokia and Oracle load their litigation weapons with their accumulated ammo and take aim at the innovators eroding their markets. It's not just the big corporations, either. As Bill Snyder explained yesterday, the patent trolls are back, and they're after you. How can any small or medium-sized business hope to survive these hostilities?

Now may be the time to take a second look at the Open Invention Network (OIN), especially in the light of their new moves into defensive publication. I've been surprised by how few open source technologists are familiar with OIN, so a refresher is in order.

Open Invention Network LLC is an unusual company. While it has the outward appearance of a law firm or of the sort of shell company patent trolls use, it actually serves as a living research lab for ways of protecting the open source community from software patents.

Based on a sound principle embodied in the Constitution -- to regulate the exploitation of creative acts so that their creators will feel safe sharing their know-how with society rather than exploit it alone in fearful secrecy -- the implementation of that principle has run out of control, under conditions that could not have been foreseen in the '40s and '50s when it was last adjusted to cope with the industrial boom triggered by World War II.

Today, due to a perfect storm of new potential to game the system provided by case law, a rate of technological progress that significantly outpaces the timebase of the system, and an economic situation that makes business models of thinly veiled extortion seem acceptable, a new interpretation of the original constitutional mandate appears to be long overdue. Patches like the SHIELD Act are good, but insufficient.

Open source licenses exist in another part of that constitutionally inspired area of state monopolies: copyright. Since all code is automatically the property of its author -- who thus gains draconian powers against anyone who uses it -- a copyright license is absolutely essential to any user. The genius of open source is to use this necessity to promote collaboration rather than to inhibit it. This is done by creating a set of elegantly simple liberties that all can enjoy and use as the context of innovation.

OIN takes that inventive leverage of a broken system into a new domain: patents. From its inception, OIN has engaged in patent pooling and cross-licensing. OIN intervenes in patent sales and uses funds from its large corporate members to buy patents that may endanger the Linux system, creating a pool of patents that relate strongly to open source technologies. Those patents are then made available for self-defense by anyone who signs a cross-licensing agreement and commits not to initiate patent action against infringements of their own patents by software in the Linux system.